Opinion
May 7, 1979
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered October 12, 1976, convicting him of three counts of attempted robbery in the first degree and one count of criminal possession of stolen property in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Reversal and a new trial is warranted in this case because of errors in the trial court's instructions to the jury. The trial court failed to apprise the jury that the burden rested upon the People to prove every element of the offenses charged beyond a reasonable doubt (see People v Newman, 46 N.Y.2d 126). The court also failed upon request of defendant's counsel to instruct the jury that in a case based upon circumstantial evidence, the evidence must be such as to exclude to a moral certainty every hypothesis of innocence (see People v. Lagana, 36 N.Y.2d 71). Finally, the charge on the credibility of witnesses was inadequate, and the court gave the misleading instruction that "The fact that a [prosecution witness] has a criminal record is no proof at all that he is untruthful" (see People v. Hernandez, 67 A.D.2d 988). Defense counsel properly excepted to all of the afore-mentioned deficiencies in the charge. Hopkins, J.P., Damiani, Titone and Suozzi, JJ., concur.